Technology for Better Fact Finding

This is a paper that I presented to the 14th International Criminal Law Congress in Melbourne on 11 October 2014. In brief it argues that new information technologies should be employed more widely in the Court system to enhance fact finding by juries and judges. It suggests that what are traditional means of evidence presentation, whilst still relevant, may be enhanced by technology use. In particular the paper questions whether the “confrontation right” requires physical presence and suggests that technology can allow virtual presence. It also points to new developments in 3D rendering and 3D printing which may enhance evidential integrity and improve presentation and consideration of evidence. The paper also questions whether some of the ritual aspects of the trial process enhance or impede proper and effective fact finding, or whether they have relevance to the primary function of the Court at all.

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The Googling Juror – Update

It was as clear as crystal that my discussion of the Googling Juror and the reasons why jurors go on-line was not going to be the last word on the subject and indeed discussion and debate can only assist in seeking solutions for preserving the principles underlying the jury trial in a new information paradigm.

To assist in that discussion and debate I have decided to post a few references that have come across my desk since I wrote the article as much to keep the research and the issue up to date as to inform further debate. Some are academic – others are in the nature of news. Some pre-date my article – mea culpa – I should have picked them up.

A helpful overview is a piece entitled “The Wired Juror Unplugged” by Susan McPherson and Beth Bonora from the Issue of Trial for November 2010. In a well documented piece they discuss the problem and emphasise the importance of telling jurors WHY they should not go on-line for information about the case or the law.

” The rapidly changing ways that people learn are clearly creating significant challenges for judges and trial lawyers. But the ways in which we choose to respond could well improve jurors’ level of comprehension and their overall experience in deciding cases. If lawyers attempt to engage jurors in a deeper understanding of the trial process and their role in it—and treat their curiosity and desire to make fully informed decisions with respect— jurors may be more motivated to play by the rules.”

The article includes some draft jury instructions, although the source for these is not credited. I assume that they have been crafted by the authors.

Marcy Zora has written a piece in the University of Illinois Law Review entitled “The Real Social Network: How Jurors’ Use of Social Media and Smart Phones Affects a Defendant’s Sixth Amendment Rights” (2012) U Ill L.Rev 577. The article advocates a “consequences” approach for juror research rather than preventative efforts. The abstract states:

” Internet resources, particularly when combined with new technologies such as smart phones with web-browsing capabilities, provide jurors with a new avenue to do independent research on the defendant or the case, or to communicate trial-related material before deliberations are complete, both of which violate a defendant’s Sixth Amendment rights. This Note analyzes the different approaches courts have taken in combating such violations, including the use of more specific jury instructions, restriction of juror access to electronic devices such as smart phones, use of voir dire to exclude “at risk” jurors, and monitoring of juror Internet activities. Ultimately, this Note argues that jury instructions, prohibitions on electronic devices in the courtroom, voir dire, and monitoring are insufficient to protect defendants’ Sixth Amendment rights. Courts, rather, should establish specific punishments for engaging in these prohibited activities, ensure that the jurors are informed of the punishments, and take a more proactive approach toward identifying violators by questioning jurors throughout the trial process.”

Ralph Artigliere, Jim Barton and Bill Hahn consider the issues in their article “Reining in Juror Misconduct: Practical Suggestions for Judges and Lawyers” (2010) 84 Florida Bar Jnl 8. The voir dire process – not used in New Zealand and other Commonwealth countries – is emphasised. The article concludes:

“Because juror misconduct threatens the fundamental fairness of a trial and is a due process issue, judges and trial lawyers should consider methods supplemental to the current standard and routine jury instructions throughout the trial. Practical methods to reduce juror temptation, such as taking away cell phones and other digital devices during deliberations, are needed in light of the current culture and technology that constantly connect jurors to other people and the Internet. Clear, strong instructions with follow up and reminders from the judge and the lawyers that clearly define right from wrong and disclose the consequences to jurors are part of the solution to reduce as much misconduct as possible. While the standard instructions are being considered for revision, judges and lawyers must be attuned to ways to minimize intentional or unintentional behavior which, left unchecked and unaddressed, will undermine fairness of jury trials. Judges and lawyers who learn better ways to address these issues should share them with the common goal of eliminating as much juror misconduct as possible from trials.”

Daniel A. Ross in the New York Law Journal for 8 September 2009 writes about juror abuse of the Internet. The article looks at the issue of jury instructions and Court policies on the use of electronic devices. The voir dire process is also considered. But the underlying message is the need for adaptation to the new technological environment.

Regardless of the precautions taken, it is unlikely that judges or lawyers will be able to eliminate juror misuse of the Internet, and they should adjust to a world in which control over information to or from jurors is much less effective than it was before the advent of Google, Facebook and the next emerging technology.

In an article entitled “Federal Judges on Guard Against Juror’s Social Media Activity” Mary Pat Gallagher examines a national survey of Federal judges which finds that there are concerns about juror use of social media and the steps that are being taken to address the problem. The article appears in the 29 March 2012 issue of New Jersey Law Journal. It is available via LexisNexis.

The importance of juror engagement in the trial process and steps that have been taken in Michigan to enable this are the subject of an editorial by Linda Mah in MLive for 17 September 2012 entitled “Courts’ Efforts emphasize the right and responsibilities of jury duty.” 

The editorial notes:

The Michigan Supreme Court deserves praise for a recently launched program that brought changes to the jury system to help jurors feel as involved as possible and to broaden the tools they have with which to decide a case….

In 2009 and 2010, the Michigan Supreme Court organized a pilot program that allowed judges to test proposed reforms in their courtrooms during actual trials. Among the initiatives were to allow jurors to submit questions for the witnesses and to discuss evidence among themselves prior to final deliberations.

The pilot program led to the adoption of “a comprehensive package of jury reform court rule amendments in September 2011, according to the Supreme Court news release.

The Akron Legal News for 18 September 2012 reports on the development of Federal model instructions and refers to the report of the  Conference of Court Public Information Officers (CCPIO) . The article notes:

A proposed new set of jury instruction for federal courts has been issued by a federal Judicial Conference Committee that relates with the fact that jurors bring their phones with them to court.

The proposed model instruction, which follows numerous state courts’ attempts to deal with this issue, would add about two pages to a standard jury instruction, one each at both the start of the trial and at the close of the case.

The model instruction follows in the footsteps of many state courts, which have been giving these sorts of jury instructions for a long time.

Concerns about the impact of social media in jury trials are not restricted to the United States. In Australia Attorneys-General have formed a task force to consider social media regulation and possible law reform following an online outpouring of grief and anger, in a murder case that has highlighted both the strong benefits and sharp risks of social media reporting on criminal investigations and prosecutions. Within minutes of the arrest of the man who was ultimately charged with the rape and murder of a young woman in Queensland, the grief and anguish earlier expressed on social media gave way to angry posts that included calls for the accused man to be tortured and “lynched.” There were also many posts that subsequently revealed the man’s face and speculated about a criminal history — posts that Australian media law experts argued could derail his trial. This is because of Australian sub judice contempt law that strictly regulates publication in the state in which a case is to be prosecuted. The article “Trial by Social Media Prompts Clash Over Accused Murderer” was published on the MediaShift website on 12 October 2012.

The whole issue of juror misconduct and how to deal with it has exercised the minds of judges in England. In November a protocol was issued by the President of the Queens Bench Division dealing with jury irregularities in general.

A “jury irregularity” is defined as:

“….anything that may prevent a juror, or the whole jury, from remaining faithful to their oath or affirmation as jurors to ‘faithfully try the defendant and give a true verdict according to the evidence’. Anything that compromises the jury’s independence, or introduces into the jury’s deliberations material or considerations extraneous to the evidence in the case, may impact on the jurors’ ability to remain faithful to their oath or affirmation.”

The protocol deals with two phases in which jury irregularity may occur – during the course of the trial and after the verdicts have been returned. The protocol is wide and covers more than the problem of “The Googling Juror.

The National Center for State Courts produces some interesting material on this topic. On the wider issue of increased engagement by Court leaders a paper by Garrett M Graff is interesting and though-provoking. Entitled “Courts are Conversations: An Argument for Increased Engagement by Court Leaders”, Graff takes the Cluetrain Manifesto as his starting point. In essence the Manifesto has come to define communication in a connected world. Although the Manifesto has markets as its emphasis, it makes the point that a global conversation has begun, enabled by the Internet. Interstingly, the Manifesto was published in 1999 before Web 2.0 ushered in the era of interactive connected communication.

Graff points out that the Courts have been a little slow to embrace social media but observes that communication is central to a court’s very being. In fact, courts are among the most critical forums (sic) for conversation in a civilized society.

One issue addressed by Graff, and which I have commented upon in my post “Why Do Jurors Go Online”, is that of user expectations in the digital paradigm.

As a new generation arrives with different expectations for conversations and interactions, courts now  face a fundamental challenge: How do they listen better to a public now used to conversing in different ways, on different platforms, and with different tools?
What we’re witnessing today represents fundamental changes in communication and behavior for a new generation. The legal system runs a serious risk that this new generation will find courts increasingly out of touch, bearing little resemblance to their lives or their chosen means of communication. To a generation raised with free-wheeling, constant, global communication, courts—with their traditions and structure—may seem as anachronistic as the oncepracticed legal tradition of tying a suspected witch to a stone to see if she sinks.

Not only must Courts understand how people are using communication tools, they must become more adept at using them themselves. The article concludes:

These new rules play out in the news on an almost daily basis, from Egypt’s Tahrir Square 
to Anthony Weiner’s Twitter feed,from the back alleys of Syria to Iowa’s Supreme Court retention election. While these disruptions have had some positive impacts—ensuring, for instance, a more responsive democracy and one where many more voices have an opportunity to be heard—this increased vulnerability for incumbents and institutions has troubling implications on judicial independence.

The answers here are much more unknown and yet the window for engagement is rapidly passing. The legislative branch and the executive branch are forging ahead. The judicial branch cannot cede all of this territory, all of these online conversations, to the other branches of government without a real cost to judicial independence. Courts cannot be left voiceless in this new world. While it’s important for the judicial branch to appear to be in touch with advances in communication, certainly, the challenge presented by the social media revolution is more fundamental than merely hopping on the hot new tech trend. The Cluetrain Revolution is altering the expectations and habits of society. The ability of courts to execute their intended functions and to achieve their stated goals of dispute resolution and justice-seeking, will be contingent upon how smartly and thoughtfully they meet society’s new expectations.

At some point in the not too distant future—perhaps this year, perhaps next, but for sure in the next five to ten years—every court will be confronted with a scenario that requires a thoughtful online communication strategy, one that incorporates YouTube, Facebook, Twitter, Tumblr, and platforms that today we can’t even imagine, into a coherent media apparatus. As any expert in crisis communication will attest, that future point will be too late to begin figuring out this world. On the day that it’s needed, the courts will already need to have the infrastructure and the following in place.

There is no silver bullet, no single correct answer for every state and every court. Instead, it is necessary for each court in every state to begin engaging as soon as it can.
Don’t wait. The world has already changed.

Finally an article in the Guardian entitled “Juries and Internet Research: We Need to Ask More Questions” (9 November 2011) refers to a valuable piece of research by Paula Hannaford-Agor, David B. Rottman and Nicole L. Waters entitled “Juror and Jury Use of New Media: A Baseline Exploration” published by the National Center for State Courts.

The US pilot study looked at a small sample of jurors in 15 civil and criminal trials in Connecticut, Florida, Michigan, Pennsylvania, Texas and Virginia. Judges, lawyers and jurors were asked to fill in questionnaires concerning new media use during the trials.

They found that 44% of jurors would like to use the web to research legal terms; 26% to find out more about the case; 23% to research the parties; 23% the lawyers; 20% the judge; 19% the witnesses and 7% their fellow jurors.

8% wanted to email their family about the trial; 5% wanted to connect with another juror; 3% wanted to connect with a trial participant, tweet or blog about the trial.

The report came hot on the heels of the case of Stephen Pardon who was jailed for four months for contempt for disclosing details of jury deliberations to a defendant. A further case involving social media use by journalists may yet come before the Courts.

The English attorney general Dominic Grieve has to decide whether to prosecute a journalist who allegedly tweeted material that breached the Contempt of Court Act during the trial of Vincent Tabak.

The tweets concerned pornography on Tabak’s laptop – evidence that had been ruled as inadmissible at his trial – and Grieve’s decision will be watched closely by an industry that has seen contempt of court re-emerge as a legal threat to publishers after years of dormancy.

There can be no doubt that the variety of uses of New Media by both jurors and others involved in the Court process is challenging. The writers of the Baseline Report published by NCSC recommend a wider study. Certainly there is a problem. Such studies can only enhance our understanding of the extent of it.

The Googling Juror: The Fate of the Jury Trial in the Digital Paradigm

This paper considers the challenges posed by the information communication technologies of the Digital Paradigm to existing concepts of the fair trial by an impartial jury. It will argue that it is necessary to recognise the existence of the new technologies and that they will be used by jurors. It will suggest steps that may be taken and solutions that may be adopted to address such activity which maintain the integrity of the criminal jury trial and its continued place, unchanged, within the legal spectrum.

 The paper addresses the nature of the problem and the issues that arise from the wide availability of information on the Internet and will address two major ways in which information use may potentially cause difficulties for the juror. These may be described as “information in” – juror research which may result in information coming into the jury room, and which may be disclosed or made available to other jurors – and “information out” – communications emanating from sitting jurors about the trial, the state of deliberations and of seeking external advice.

The paper examines some possible reasons why it is that jurors wish to ignore judicial instruction and carry out their own researches. This will be viewed in light of the effect that new technologies may have on our wider expectation of information availability and the way in which those technologies enable behaviours.

The paper refers to recent research which may challenge the assumption that juror research may automatically result in a mistrial or is prejudicial to the trial process and offers some possible solutions to the problem. One is to consider juror education that goes beyond a judicial prohibition on “out-of-court” research. The other is to consider a nuanced and graduated response that may be applied when juror misconduct comes to light. The paper concludes that while so challenged, the jury system can survive the encounter with new information technologies.

A part of this paper – Why Do Jurors Go On-Line – was published as a stand-alone piece here. The paper was presented to the International Criminal Law Congress in Queenstown, New Zealand on Thursday 13 September 2012.

In essence the paper argues that changing information expectations on the part of “digital native” jurors are having an impact upon the jury trial – which uses an archaic oral means of communication information. This creates a tension with the “information now” non-linear means of information acquisition that digital technologies allow. The suggestion is that there are a number of means of addressing the problem and adapting trial processes to accommodate the information expectations of jurors. In addition, it suggests a nuanced approach to dealing with juror misconduct based on an analysis of information flows and possible impact upon the outcome of the trial.

  

 

Why Do Jurors Go On-line?

The discussion that follows is part of a wider investigation that I have undertaken in preparing for a paper to be presented at the International Criminal Law Congress to be held in September 2012. The paper is about the use of social media by jurors, the challenges that this presents to the jury system and how these challenges can be met.

Part of the paper deals with why it is that jurors go on-line, despite admonitions from the Bench. In brief it all has to do with the way in which new information technologies impact upon, enable and change our behaviour. In terms of information flows – which is what a jury trial is all about – the digerati, if I can use that term, find the trial process to be counter-intuitive to their information gathering and processing experience. The discussion below expands upon these observations. Some of the thinking that underpins this discussion was expressed in a much more abbreviated form in my keynote at Nethui on 13 July 2012.

Comments, of course, are welcome and encouraged.

Why Do Jurors Go On-line?

The Internet allows practically anyone anywhere to disseminate information just about everywhere.  Enlightenment era insistence upon essentialist  foundations – be it by way of Locke’s empiricism, Kant’s rational categories or other totalising epistemologies – is being challenged by the digital experience.[1]  Richard Rorty in his forward to Gianni Vattimo’s Nihilism and Emancipation: Ethics Politics and Law said “ the Internet provides a model for things in general – thinking about the worldwide web helps us to get away from platonic essentialism, the quest for underlying natures, by helping us to see everything as a constant new changing network of relations.”[2]

The digital paradigm has resulted in the development of a generation within society who have known nothing else but digital information systems – Marc Prensky’s “digital natives.”[3] Prensky was writing about students and their use of technology but the University students of whom he wrote in 2001 are now adults and available for jury service.

 “They have spent their entire lives surrounded by and using computers, videogames, digital music players, video cams, cell phones, and all the other toys and tools of the digital age.  Today’s average college grads have spent less than  5,000 hours of their lives reading, but over 10,000 hours playing video games (not to mention 20,000 hours watching TV).  Computer games, email, the Internet, cell phones and instant messaging are integral parts of their lives

 It is now clear that as a result of this ubiquitous environment and the sheer volume of their interaction with it, today’s students  think and process information fundamentally differently from their predecessors. These differences go far further and deeper than most educators suspect or realize.”[4]

Prensky’s “digital natives” are “native speakers” of the digital language of computers, video games and the Internet. Those who were not born into the digital world but have, at some later point in life, become fascinated by and adopted many or most aspects of the new technology are “digital immigrants.” Prensky suggests that the difference is important because, like it or not, digital immigrants speak with a different “accent” from digital natives.

 “As Digital Immigrants learn  – like all immigrants, some better than others – to adapt to their environment, they always retain, to some degree, their “accent,” that is, their foot  in the past.   The “digital immigrant accent” can be seen in such things as turning to the Internet for information second rather than first, or in reading the manual for a program rather than assuming that the program itself will teach us to use it. Today’s older folk were “socialized” differently from their kids, and are now in the process of learning a new language. And a language learned later in life, scientists tell us, goes into a different part of the brain.”[5]

 There is a third category which was not referred to by Prensky, but if I can use his language they may be classed as “digital aliens” those who wish to have nothing to do with the digital paradigm, who do not wish to engage with the new technology or will not do so, and who resist the changes that new technologies demand of them. This grouping is normal in the introduction of a new technology. It is part of the normal co-existence of technologies until a new technology has been universally received, and the digital natives become an overwhelming majority.[6]

The closed system of the jury trial, contained by strict rules which discourage initiative and activism by the jurors, is premised on the assumption that jurors will accept the authority of the court to guide them and are willing to base their decision only on what the lawyer present[7]  does not mesh with the experience and values of the digital native juror or perhaps even many digital immigrants.

Jurors are:

a)  only presented with the evidence that they are allowed to consider.

b) The evidence has been vetted, filtered, and mediated by the Judge and the lawyers.

c) Jurors are forbidden from taking the initiative and finding out information on their own.

d) They are told to be largely passive and are told (at least in the United States) that they cannot discuss the evidence or the case with one another until it is time for deliberation.

e) In the United States they are discouraged from asking questions during trial and once they are told to deliberate they are unable to obtain or be supplied with any new information or evidence even where they find significant gaps in what they have been told.

f) Finally they have to decide the case on the basis of legal rules articulated by the Judge and they cannot use their own values or moral sense.

 This runs up against what could be described as the values of the Internet and the digital age or at least a perception of the relationship between information provided by the Internet and Internet users.

One of the early slogans of the Internet and the digital age was the cry that information wants to be free.  This didn’t refer only to the cost of obtaining information but also the concept that information, and especially information on the Internet, should not be controlled by governmental or corporate sources nor should it be reserved for a privileged few.[8]  The ultimate user of the information should be capable of evaluating sources of varying quality and make his or her own decision about what to use, rely on it or what to discard.  The information available on the Internet is broad in nature.  The individual must sort through the results and the user must decide what the value and explore and what to discount.

Unlike information at trial where a juror may not be able to examine the exhibits until deliberations, the Internet user with electronic devices can access information immediately from virtually any location, save it or retain it or bookmark it and review it as often as desired and also link it to other information.

The Internet allows the user to discuss any subject, public or private, with other people at any time of the day or night in considerable detail or within the 140 character limitation of Twitter. It should not, therefore, be surprising for a digital native – one used to the world of the Internet and social media – that the methods and form of acquiring information in a trial may seem stifling, inefficient and unduly restrictive.[9]

Another reason why jurors may wish to have resort to the Internet has to do with their perceived role in the process. Morrison makes the observation that jurors are often trying to gain information about the defendant’s background, the circumstances of the case and the effects of the law in an effort to achieve the most accurate result.  She argues that such attempts may not reflect misconduct so much as a misplaced sense of responsibility to render the right decision.[10]

Internet access may be giving juries a means, although unauthorised, of sending a signal that they are frustrated with the restrictions associated with their role.  Morrison suggests that juries seem to have been relegated to players within the trial process whose information about what is going on is severally constrained by the Judges, the lawyers and the rules of evidence.[11]  The Internet’s “democratisation” of information has extended to the jury room and the emerging issue of Internet use by jurors may reflect in attempt to regain a measure of control over the proceedings that has since been given over to the legal profession.

The trial process and the rules of evidence reflect a concern that the wrong kind of evidence will distract jurors or cause them to decide on emotional or irrational bases.  The result is that jurors operate in a highly restrictive, formalistic environment that ensures that only some relevant information will be admitted. Some jurors may feel that the lawyers and the Judge form some sort of elite club from which they are excluded, as if the adversarial system is “based on the Judge and the Attorneys being in the know about everything and the jury being in the dark”.   This may not be new.  What has changed, however, is the jurors’ ability to do something about it,[12] and jurors, like other people, are generally unable to disregard information that they know and that they consider to be relevant, whether they ought to or not.[13]

Furthermore, juror “research” may amount to more than the perusal of on-line newspapers.

a)         on-line activity has become fully embedded in most people’s everyday lives.  While a juror might refrain from reading the paper, it might be impossible to refrain from checking in RSS feed.

b)         Information may be available from websites that contain legal information, case law databases, legal blogs or targeted sites that contain details of previous convictions such as a site operated by the Sensible Sentencing Trust.[14]

c)         In addition, there is almost limitless information available on the Internet even about facts or individuals which would not otherwise be deemed news worthy.

d)         because there is no system of fact checking on the web information may be incomplete erroneous or false.

 Part of the difficulty is that courts operate on the assumption that jurors will abide by legal instructions but the psychological literature and empirical studies show that jurors frequently misunderstand these.[15]  The Internet, with its virtual connections that seem almost – but not quite – real, confuses jurors further.  It provides an opportunity to check and to ensure that the right result is being reached as a way of ensuring that decision making freedom is maintained. The conflict models of the adversarial system seem to be yielding to alternative truth-seeking strategies.

Yet there is more to it than that, and to a large degree it has to do with the way in which we respond to new communication technologies. Morrison describes this as the “siren song” of the web.[16]  The Internet represents a different paradigm in communications technology – part of what may be referred to as the Digital Paradigm. It is quite different from other media that have gone before.  As one psychologist put it “being highly interactive, computers are much more captivating than passive media such as television.”[17]  This takes McLuhan’s theory of “hot” and “cool” technologies a step further.[18]  The difference between reading, for example, and television depended upon the level of engagement with the medium.  The level of interactivity with the medium, as far as the Internet is concerned, is significantly higher than with a book or with a television programme. And it must be remembered that the Internet is more than just an information platform and has moved to the interactive and participatory world that is Web 2.0 enabling the launch of Wikipedia, YouTube, Facebook, Myspace and Twitter.  The Internet has become a kind of universal companion that enables people to confide, exhibit themselves and vent their frustration in ever increasing numbers.[19]

Yet the Internet works in other ways. There is an illusion of anonymity. Immediacy encourages transgressions through the phenomenon of dis-inhibition which leads to impulsive behaviour.[20]  Psychologists have found that people are less inhibited and reveal more about themselves on-line because they feel invisible and protected by the Internet’s seeming anonymity.  Some people prefer to interact on-line rather than face-to-face. According to one psychiatrist, deficits in insight and judgment maybe especially obvious in the context of Internet behaviour.[21] Furthermore there is often an element of dissociation with reality which encourages a certain amount of unjustified self-confidence that a particular behaviour will go unnoticed, is not wrong or is being performed in a space – often in the private space  of a room in a home or an apartment – which lends a certain justification to the behaviour.[22] In the same way that the computer criminal is a greater threat to the community in terms of the nature of his criminality than the fraudster who presents a credit card across a counter – simply because the computer criminal does not have to interact with other people in the pursuit of his crime – the juror feels likewise alienated from the court room environment which occupies a different world in terms of culture – especially informational acquisition culture – from that to which he or she is accustomed.

Morrison is of the view that various Internet protocols exercise their own particular fascination. “Blogging, posting status updates, and tweeting present their own compulsive appeal.”[23] The externalisation of thoughts that may be read by others may lead to an assumption that all of one’s thinking should be externalised.[24] For some, waiting around on jury duty with access to WiFi can be tedious, prompting posts to Twitter or to a blog.

“I am stuck in jury duty today, but being that Multnomah County is the coolest of counties, of course the jury waiting room has Wi-Fi! So of course that means one thing: I’m live blogging jury duty. Is this legal? Am I in contempt of court? I don’t know, but I am sitting in a big, drab room with about 100 other people, waiting around to see if our number is called to go up stairs and serve on a trial, and it is obvious that this must be blogged about. I’ll have to run home during the lunch break and grab my camera so I can post some pictures of this afternoon’s action.”[25]

 It could be said that a convenient summary of why jurors carry out their own research may be answered by the phrase “because we can” and this would probably be the justification advanced by the digital native. Yet I would suggest that there is more to the issue that that, and there are deeper currents that are associated with new information communications paradigms that may help to explain the way in which the Internet has taken hold.

The Internet, Information Technology and Drivers for Change

When we consider information technologies in the main we focus upon what is delivered (the content) rather than how it is delivered (the medium). The focus upon content obscures some of the deeper realities of the technology and how it alters or affects our attitudes to, uses and expectations of information.

In considering the first information technology, Elizabeth Eisenstein suggested that the capacity of printing to preserve knowledge and to allow the accumulation of information fundamentally changed the mentality of early modern readers, with repercussions that transformed Western society.[26]  Ancient and Medieval scribes had faced difficulties in preserving the knowledge that they already possessed which, despite their best efforts, inevitably grew more corrupted and fragmented over time. The advent of printed material meant that it was no longer necessary for scholars to seek rare, scattered manuscripts to copy. The focus shifted to the text and the development of new ideas or the development of additional information. The printing press was paradigmatically different from the earlier scribal or manuscript culture in terms of making information available.

In developing her theory, Eisenstein went below the content that print made available and examined certain characteristics, qualities or properties possessed by print that differentiated it from earlier forms of information communication. These qualities were:

a)         dissemination

b)         standardisation

c)         reorganization

d)         data collection

e)         fixity and preservation

f)         amplification and reinforcement. [27]

In many respects these properties remain in digital technologies but in an enhanced form. In addition there are a number of other qualities that digital information systems possess that are paradigmatically different from those possessed by print. Some of these can be identified as follows:

    1. Persistence
    2. Dynamic Information
    3. Continuing change – the disruptive element
    4. Dissociative enablement
    5. Permissionless innovation
    6. Permanent connectedness
    7. Participatory information creation and sharing
    8. Searchability
    9. Availability and remote access
    10. Retrievability

I shall refer to the quality of persistence shortly. Perhaps the last three qualities can be dealt with as a single unit for they are related. Searchability deals with the ability to locate information from the vast store of information that is located across the Internet. Complex search engines assist users to find the information that they seek. Availability means that the information can be readily obtained. No longer does the user have to go to the library, wait for the book to be returned to the library, or for interloan to send the book. Information becomes instant. Retrievability follows availability. Once the existence and location of the information is determined, it can be obtained.

These qualities of themselves don’t mean much until we understand what they enable. The fact that Internet users may not understand the nature of these properties, but accept them as a given in the quest for content, means that these qualities subconsciously impact upon expectations of information (instantly available) and they way that users deal with it and process it.

These qualities challenge the jury system – the juror is enabled to readily locate information that may have a bearing on a case, not because that juror is willingly flying in the face of a judicial directive to the contrary, but because the Internet is the way in which information is obtained, rather than through the archaic processes of a trial. That, together with the property of dissociative enablement – the ability to obtain information privately and undetected – allows a different mindset that sidesteps the morality of obtaining information outside the trial process.

The “permissionless innovation” and “permanent connectedness” of the Internet has allowed for a number of other applications and utilities which, along with the interactive nature of Web 2.0, present further challenges. These can broadly be referred to as social media tools. Social media recognise that man is a social animal and the Internet allows for socialization on a scale far wider than in clubs, bars or workplaces.

Social Media

In 2010 the committee of the Conference of Court Public Information Officers issued a report on the impact that the new media is having on the court system.[28] The findings of that study were interesting. It observed

  •   that there are emerging interactive social media technologies that are powerfully          multimedia in nature;
  •   that there are fundamental continuing changes in the economics, operation and vitality of the news industry that courts have relied upon to connect with the public
  • and there are broader cultural changes in how the public receives and processes information and understands the world.

These “new media” pose a number of challenges to Courts and their culture.

  • New media are decentralised and multi directional whilst the courts are institutional and largely unidirectional.
  • New media are personal and intimate whereas Courts are separate, sometimes cloistered and by definition independent.
  • New media are multimedia incorporating video and still images, audio and text whilst Courts are highly textual.

Into this cloistered and highly textual environment come jurors whose perceptions have been formed by the media to which they have been exposed.

The report identifies 7 categories of new media technology that impact upon the Courts.  These are:

1)         Social media profile sites (Facebook, Myspace, Linkedin, Ning) which allow users to join, create profiles, share information and view still and video images with a defined network of “friends”.

2)         Microblogging (Twitter, Tumblr, Plurk). Microblogging is a form of multimedia blogging that allows users to send and follow brief text updates on micromedia such photos or audio clips and publish them on a website for viewing by everyone who visits the website or by a restricted group.  Microbloggers can submit messages in a variety of ways, including text messaging, instant messaging, email or digital audio.

3)         Smart phones, tablets and notebooks (iPhone, iPad, Droid and Blackberry). This category is defined by those mobile devices that can capture audio, as well as still and video images, and post them directly to the Internet.  These devices also enable users to access the Internet, send and receive emails and instant messages, and otherwise connect with on-line networks and communities through broadband or Wifi access.

4)         Monitoring and metrics (Addictomatic, Social Seek, Social Mention, Google Social Search, Quantcast) This category includes the large and increasing body of sites that aggregate information about Internet traffic patterns and what is posted on social media sites.  They display analysis of how a particular entity is portrayed or understood by the public.

5)         News categorising, sharing and syndication (Blogs, RSS, Dig, Reddit, Delicious)  this is a broad category that includes websites and technology that enable the easy sharing of information, photos and video, and the categorisation and ranking of news stories, posts to blogs and other news items.

6)         Visual media sharing (Youtube, Vimeo and Flikr) these sites allow users to upload still and video images that are stored in searchable data bases and easily shared and can be emailed, posted, or embedded into nearly any website.

7)         Wikis.  A Wiki is a website that allows for the easy creation and editing of multiple interlinked web pages via a web browser using a simplified mark-up language or a WYSIWYG (what you see is what you get) text editor.  Among the uses for wikis are the creation of collaborative information resource websites, power community websites and corporate intranets.  The most widely recognised and used wiki is the collaborative encyclopedia Wikipedia.  In other much lesser known wiki that has an impact on the judicial system and is the subject of study in the new media project is Judgepedia.

 All of these categories of new media involve the creation, assembly and dissemination of information.  Many of these utilities have been adopted by mainstream media on the Internet to the extent that there is a significant element of media convergence.[29] Not only may information about cases be disseminated in a multitude of ways by mainstream media but may be the subject of commentary discussions and opinion on blogs and twitter.

In addition, modern technology means that the Internet is accessible virtually anywhere – permanent connectedness.  Portable wireless devices mean that an individual may blog or tweet from anywhere, including inside a Court room.  Miniaturised devices such as smart phones mean that such activity may be carried out discreetly.

Once this information is on the Internet it is readily available and the “persistence” quality of the Internet means that, like the Internet itself, it is always available.  Information posted on the Internet remains there – it is contained in the “document that does not die.”  Although a website may have suffered from “link rot” and may not be immediately accessible, it may be located by means of a utility known as the “Wayback Machine” which indexes websites and makes them available as part of a project known as The Internet Archive.[30]

Some websites prevent the “harvesting” of their websites by use of anti-robot or webspider devices. The New Zealand Herald is one example. However, TVNZ websites are available as far back as 1997.[31] Thus information about Court proceedings and what has gone before from the commencement of an investigation may be available pre-trial, during trial and post trial and is available to anyone who has an Internet connection.  The wide variety of social media and new media tools which continue to develop as new ideas manifest themselves as the result of “permissionless innovation” means that to try and identify any one particular type of application or utility is an exercise in futility mainly because information may be available from a number of sources.

Large scale search engines, such as Google, rank information on the basis of a number of factors.  Internet users posting information may take advantage of ranking to ensure that a particular site may appear on the first page of a search result.  News media are particularly adept at this by making sure that embedded in their material are terms that will lift rankings in the search engines.

The other side of this particular coin is that much information that is on the Internet is simply buried because it doesn’t rank as highly as others on search engines.  Only the most devoted or dedicated researcher is going to go through the thousands of hits that a particular search may reveal.  This means, for example, that many bloggers who may feel that they have something to say, in fact broadcast to a limited audience.  The impact that these contributors make to the informational soup is very low.  On the other hand a highly distributive utility such as Twitter means that a message sent to a small group of followers may well be re-tweeted to an infinitely larger audience.

Because of the persistence, permanent connectedness, availability, searchability and retrievability of information, what has been described as “practical obscurity” of information means that information that once was difficult to find is readily available.  For example to recover a newspaper report of the arrest of a high profile person in pre-Internet days may have necessitated a trip to a library newspaper room and a diligent search through back issues of a newspaper to locate the information.  The Internet now makes that information instantly available and it is fresh as the day upon which it was published.  The eroded  memory – what could be called “partial obscurity” – can be quickly restored as the easily locatable reports or information appears on the screen.  Thus the one of the many truly revolutionary qualities of the Internet is the challenge to the obscurity of information.

Yet perhaps one of the most challenging aspects of the Internet is that it never sits still. This has to do with the way in which the Internet has been structured. For many the Internet is the World Wide Web, but it is not. In fact the Web is an application that “piggybacks” upon and utilises the infrastructure that the Internet provides. The quality of “permissionless innovation” allowed Tim Berners-Lee to put the concept of the Web on the backbone of connections and servers that comprise the Internet backbone – the “real” Internet. In its most basic form the Internet is a global system of interconnected computer networks that use the standard Internet protocol suite (often called TCP/IP, although not all protocols use TCP) to serve billions of users worldwide. It is a network of networks that consists of millions of private, public, academic, business, and government networks, of local to global scope, that are linked by a broad array of electronic, wireless and optical networking technologies.

John Naughton uses the metaphor of the railway to describe the Internet.

 “Think of the Internet as the tracks and signalling technology of the system – the infrastructure on which everything runs. In a railway system different kinds of traffic run on the infrastructure: high-speed express trains, slow stopping trains, commuter trains, freight trains and (sometimes) specialist maintenance and repair trains”[32]

 What this infrastructure enables is disruptive, permissionless innovation. Disruptive innovation is defined as “a process by which a product or service takes root, initially in simple applications at the bottom of a market and then relentlessly moves ‘up market’, eventually displacing established competitors.”[33] The disruptiveness of the Internet is a feature that derives from the basic architectural principles of the network’s design. When Vinton Cerf and Robert Kahn developed the TCP\IP (packet addressing and transmission) protocol that allowed the various different networks and computer types to seamlessly link there were two principles that drove them, and that are the bedrock of the architecture of the Internet;

–          There should be no central control

–          The network should not be optimised for any particular application – the “end-to-end” principle.[34]

Thus, if one had an idea for a new application that could be achieved using the transmission of data packets, the network would allow it without any query about the nature of the application or what it transmitted. A number of phrases developed to describe this phenomenon such as “stupid network, smart applications” but ultimately it became known as the “end to end” principle and it was this, together with the lack of a central controlling or approval body that enabled entrepreneurs and developers to think up applications that could utilise the capabilities of the network.

Examples abound but some of the more outstanding are the development of the World Wide Web by Tim Berners-Lee, the first killer file sharing application Napster[35] by Shawn Fanning released in 1999, the introduction of Amazon.com by Jeff Bezos in 1995, the Wiki software developed by Ward Cuningham in 1994-5 which enabled the editing and updating of web pages on the fly in a browser and which was adopted by Wikipedia founders Jimmy Wales and Larry Sanger in 2001, the introduction of Google[36] in 1998 by Larry Page and Sergey Brin, the development of the social networking site Facebook by Mark Zuckerberg in 2004[37] and Twitter developed by Jack Dorsey in 2006.

The examples that I have given are just a small handful but they and others like them demonstrate an important fact about the Internet and it is this – the Internet will not allow for a period of stability – a time for us to pause, reflect and regroup. There will continue to be new applications and new surprises which digital natives are going to adopt and adapt and which will continue to challenge institutions that developed in a different paradigm.

Change, Communication and Juror Behaviour

But what has all this to do with juror behaviour? I suggest that it is a part of a deeper issue about how we adapt to new technologies and to new communications technologies in particular. Communication is an essential part of man’s social nature. Without communication there would be isolation. For thousands of years our primary means of communication was oral. Writing and literacy are recent arrivals. Plato railed against writing as a challenge to the powers of memory.[38] The arrival of the printing press followed upon centuries of the scribal culture which had developed into a static form of information communication.[39] The printing press was the first information technology and provided the basis for a number of changes in the way in which people thought and behaved. It demonstrated McLuhan’s aphorism “We shape our tools and afterwards our tools shape us.”[40] Within the pre-print culture, orality dominated as the principal form of social communication. The printed book gave rise to the muting of orality as the reader retired into his or her own mind.[41] Reading made different demands on people – immobility, isolation, silence, concentration “the ability to immerse oneself in the thought processes of the writer and to remember and make links with the thoughts of writers as expressed in other texts.”[42]

Although reading had been a part of the human existence for thousands of years before printing, the advent of printed material made the written word available to a wider audience. However, humans are not genetically structured for reading in the way that we are for oral language. Maryanne Wolf in her book on the neuroscience of reading[43] argues that reading changes the way that our brains are organised which has had an impact on the way in which the species evolved. It is based upon what neuroscientists refer to as the plasticity of the brain. As we acquire new skills, new connections are created in the brain and new neural pathways are developed. Wolf puts it this way:

“Thus the reading brain is part of highly successful two-way dynamics. Reading can be learned only because of the brain’s plastic design, and when reading takes place, that individual brain is forever changed, both physiologically and intellectually. For example, at the neuronal level, a person who learns to read in Chinese uses a very particular set of neuronal connections that differ in significant ways from the pathways used in reading English. When Chinese readers first try to read in English, their brains attempt to use Chinese-based neuronal pathways. The act of learning to read Chinese characters has literally shaped the Chinese reading brain. Similarly, much of how we think and what we think about is based on insights and associations generated from what we read.”[44]

Thus we can see how McLuhan’s aphorism begins to work. But the matter does not end there. According to Postman reading fosters rationality and the form of the printed book encourages what Walter Ong called “the analytic management of knowledge”.[45] Postman suggests that the printed text engages powers of classification, inference making and reasoning.

“It means to uncover lies, confusions, and over-generalizations, to detect abuses of logic and common sense. It also means to weigh ideas, to compare and contrast assertions, to connect one generalization to another. To accomplish this, one must achieve a certain distance from the words themselves, which is, in fact, encouraged by the isolated and impersonal text. That is why a good reader does not cheer an apt sentence or pause to applaud even an inspired paragraph. Analytic thought is too busy for that, and too detached.”[46]

Of course these forms of analysis and qualities existed in the scribal era which was predominated by an oral culture – and the modern jury is a creature, still, of oral culture – but Postman is suggesting that print enhanced and developed these qualities even further and resulted in the development of Typographical Man for whom the written and printed word achieved a dominance both consciously and, because of brain plasticity, subconsciously.

Sven Birkerts puts it this way

“The order of print is linear, and is bound to logic by the imperatives of syntax. Syntax is the substructure of discourse, a mapping of the ways that the mind makes sense through language. Print communication requires the active engagement of the reader’s attention, for reading is fundamentally an act of translation. Symbols are turned into their verbal referents and these are in turn interpreted. The print engagement is essentially private. While it does represent an act of communication, the contents pass from the privacy of the sender to the privacy of the receiver. Print also posits a time axis; the turning of pages, not to mention the vertical descent down the page, is a forward moving succession, with earlier contents at every point serving as a ground for what follows. Moreover, the printed material is static – it is the reader, not the book, that moves forward. The physical arrangements of print are in accord with our traditional sense of history. Materials are layered; they lend themselves to rereading and sustained attention. The pace of reading is variable, with progress determined by the reader’s focus and comprehension.”[47]

Lest one consider that the advent of the e-book or the Kindle will allow reading to continue unabated as before, Birkerts responds in this way:

“I’m not blind to the unwieldiness of the book, or to the cumbersome systems we must maintain to accommodate it—the vast libraries and complicated filing systems. But these structures evolved over centuries in ways that map our collective endeavor to understand and express our world. The book is part of a system. And that system stands for the labor and taxonomy of human understanding, and to touch a book is to touch that system, however lightly….

Literature—our great archive of human expression—is deeply contextual and historicized. We all know this—we learned it in school. This essential view of literature and the humanities has been—and continues to be—reinforced by our libraries and bookstores, by the obvious physical adjacency of certain texts, the fact of which telegraphs the cumulative time-bound nature of the enterprise.  We get this reflexively.

But reflexes are modified by use and need. As Marshall McLuhan argued decades ago, technology changes reflexes, replacing them with new ones. Our rapidly evolving digital interface is affecting us on many levels, not least those relating to text and information. We read and absorb as the age demands, and our devices set the pace. I was in a crowd at a poetry reading recently, eavesdropping on the conversation behind me. Somebody referenced a poem by Wallace Stevens but couldn’t think of the line. Her neighbor said “Wait—” and proceeded to Blackberry (yes, a verb) the needed words. It took only seconds. Everyone bobbed and nodded—it was the best of all worlds.”[48]

Thus are our thought processes dictated by the medium.

The Internet is at least as revolutionary a technology as the printing press was and it is no accident that I referred to our present information era as “The Digital Paradigm” because the new information systems that are available to us are as paradigmatically different from print as print was to the scribal culture.

The networked media is like an ecosystem – a community of organisations, publishers, authors, end users and audiences which, along with their environment, function as a unit. Until the advent of the Internet our media ecosystem was dominated by monolithic “one-to-many” media[49] that shaped discourse and dominated entertainment and sport. The established and largely centralised media had a significant impact upon public and private life and culture. The discourse was limited to what was approved for print or broadcast. The ecosystem has changed dramatically. The Internet now overshadows main stream media and the continuing use of computers and the computing power of the mobile phone will mean that the Internet will replace mainstream media as the “dominant species” within the media ecosystem.

In the same way that Birkerts expressed concerns at the decline of reading, others have developed a dystopian view of the networked world that in some ways focuses attention upon the nature of the changes that are taking place – the way in which the tool of the Internet is beginning to shape us, as McLuhan would have it. The Internet seems to erode the capacity for contemplation and concentration.

Nicholas Carr observed

“Over the past few years I’ve had an uncomfortable sense that someone, or something, has been tinkering with my brain, remapping the neural circuitry, reprogramming the memory. My mind isn’t going—so far as I can tell—but it’s changing. I’m not thinking the way I used to think. I can feel it most strongly when I’m reading. Immersing myself in a book or a lengthy article used to be easy. My mind would get caught up in the narrative or the turns of the argument, and I’d spend hours strolling through long stretches of prose. That’s rarely the case anymore. Now my concentration often starts to drift after two or three pages. I get fidgety, lose the thread, begin looking for something else to do. I feel as if I’m always dragging my wayward brain back to the text. The deep reading that used to come naturally has become a struggle.”[50]

Yet the Internet is largely a text based system and it may well be that we are reading more. The problem is that the nature of what we are reading and the way that we process the material is changing – once again Wolf’s brain plasticity theory. She worries that the style of reading promoted by the Net, a style that puts “efficiency” and “immediacy” above all else, may be weakening our capacity for the kind of deep reading that emerged when an earlier technology, the printing press, made long and complex works of prose commonplace.[51] Could it be that, within the next few decades, our dependence upon digital information and Internet technologies will make us functionally incomptent to engage in reasoned decision-making unless we are plugged into or have immediate access to cyberspace?

All of this is a long way from the jury room but it does help to explain a few things. The combination of the qualities that Internet information possesses with the way in which the use of a new communications technology affects our dynamic thought patterns and cognitive ability means that the Internet becomes an essential information resource to which we are adapting – have become adapted? – and which will be the principal information resource for the Digital Natives as Encyclopaedia Britannica was for those born in the mid-twentieth century. The sense of loss expressed by Birkerts and Carr can be explained in terms of cognitive and thinking abilities which were developed in the print paradigm and which mourn its passing. The linear side-to-side verticality of reading and processing information becomes replaced with a hypertexted system of information that is not only dynamic in itself but encourages dynamic behaviour on the part of the users, as they switch from a webpage to instant messaging to email to a Skype session.

Lord Chief Justice Judge put this into the context of the jury trial when he wrote:

“Let me now consider my grandchildren. Not perhaps the youngest two, but the teenagers. They are technologically proficient. Much of their school work is done by absorbing information from machines. They consult and refer to the Internet. When they do so they are not listening. They do not, as we did, sit in class for 40 minutes listening to the masters and mistresses providing us with information. They are provided with information in written form, which they assimilate into their own technology.

Now, what this form of education lacks is training in the ability to sit still and listen, and I emphasise, listen and think, I repeat, listen and think simultaneously, for prolonged periods. Yet that is an essential requirement for every juror.”[52]

What is perhaps so dramatic about this passage is that His Lordship describes a trial system that depends upon orality as its focus, and perhaps what he fails to recognise is that the Digital Natives find such a means of absorbing information completely incompatible with the way in which their learning systems are becoming adapted as a result precisely of the technological proficiency to which His Lordship refers. The means of information gathering is radically different from that acquired from a book, as I suggest above and as Birkerts observes.

“Information and contents do not simply move from one private space to another, but they travel along a network. Engagement is intrinsically public, taking place within a circuit of larger connectedness. The vast resources of the network are always there, potential, even if they do not impinge on the immediate communication. Electronic communication can be passive, as with television watching, or interactive, as with computers. Contents, unless they are printed out (at which point they become part of the static order of print) are felt to be evanescent. They can be changed or deleted with the stroke of a key. With visual media (television, projected graphs, highlighted “bullets”) impression and image take precedence over logic and concept and detail and linear sequentiality are sacrificed. The pace is rapid, driven by jump-cut increments, and the basic movement is laterally associative rather than vertically cumulative. The presentation structures the reception and, in time, the expectation about how information is organised.

Further, the visual and non-visual technology in every way encourages in the user a heightened and ever-changing awareness of the present. It works against historical perception, which must depend on the inimical notions of logic and sequential succession. If the print medium exalts the word, fixing it into permanence, the electronic counterpart reduces it to a signal, a means to an end.”[53]

This is information ecosystem within which Digital Natives dwell and these are the factors that drive them to seek out new information horizons and to boldly go where Judges tell them not to.


[1] Richard K Sherwin, Neal Feigenson, Christina Spiesel “Law in the Digital Age: How Visual Communication Technologies are Transforming the Practice, Theory and Teaching of Law” (2006) 12 Boston University Jnl of Science and Technology Law 227.

[2] Richard Rorty “Foreword,” in Gianni Vattimo, Nihilism & Emancipation: Ethics, Politics, & Law (Columbia University Press, New York, 2004) p. xvii.

[3] Marc Prensky “Digital Natives, Digital Immigrants” (2001) 9 On the Horizon 1 http://www.emeraldinsight.com/journals.htm?issn=1074-&121&volume=9&issue=5&articleid=1532742&show=pdf; www.marcprensky.com/…/prensky%20-%20digital%20natives,%20digital%20immigrants%20-%20part1.pdf  (last accessed 23 February 2012).  For a brief introduction the the development of Presnsky’s theory seeWikipedia “Digital Native” http://en.wikipedia.org/wiki/Digital_native (last accessed 23 February 2012) – for further discussion see below Part 2; see also Sylvia Hsieh “’Digital Natives’ Change Dynamic of Jury Trials”  Mass Law Wkly 7 November 2010  http://www.legalnews.com/detroit/803882 (last accessed 24 April 2012).

[4] Ibid.

[5] Ibid.

[6] As Steve Jobs put it when the Apple computer was first came on the market “When Apple first started out, “People couldn’t type. We realized: Death would eventually take care of this.” Wall St Journal “All Things Digital” Conference April 2003, San Francisco. The report of the comments is at The Mac Observer Website “Steve Jobs: No Tablet, No PDA, No Cell Phone, Lots Of iPods” 4th June 2003 http://www.macobserver.com/tmo/article/Steve_Jobs_No_Tablet_No_PDA_No_Cell_Phone_Lots_Of_iPods/ (last accessed 5 April 2012)

[7] Judge Dennis M. Sweeney (Ret) “Worlds Collide: The Digital Native Enters the Jury Box” (2011) 1 Reynolds Courts and Media Law Jnl 121 at 130.

[8] The Internet therefore allows greater “democratisation” of information.

[9] Sweeney above n. 7  p. 131.

[10] Caren Myers Morrison “Jury 2.0” (2011) 62 Hastings LJ 1579 at 1581.

[11] Ibid.

[12] Ibid. p.1585-6.

[13] Shari S. Diamond, “Beyond Fantasy and Nightmare: A Portrait of the Jury” (2006)54 Buff. L. Rev. 717 750-51.

[14] http://www.safe-nz.org.nz/Data/database.htm (last accessed 11 April 2012).

[15] Morrison above n. 10  p. 1608-9.

[16] Ibid. p. 1612.

[17] Michael G. Wessells Computer, Self and Society (Prentice Hall, Englewood Cliffs, NJ, 1990)  p. 214

[18] Marshall McLuhan Understanding Media: The Extensions of Man (McGraw Hill, NY 1964)  In the first part of Understanding Media, McLuhan stated that different media invite different degrees of participation on the part of a person who chooses to consume a medium. Some media, like the movies, were “hot”—that is, they enhance one single sense, in this case vision, in such a manner that a person does not need to exert much effort in filling in the details of a movie image. McLuhan contrasted this with “cool” TV, which he claimed requires more effort on the part of the viewer to determine meaning, and comics, which due to their minimal presentation of visual detail require a high degree of effort to fill in details that the cartoonist may have intended to portray. A movie is thus said by McLuhan to be “hot”, intensifying one single sense “high definition”, demanding a viewer’s attention, and a comic book to be “cool” and “low definition”, requiring much more conscious participation by the reader to extract value.

Hot media usually, but not always, provide complete involvement without considerable stimulus. For example, print occupies visual space, uses visual senses, but can immerse its reader. Hot media favour analytical precision, quantitative analysis and sequential ordering, as they are usually sequential, linear and logical. They emphasize one sense (for example, of sight or sound) over the others. For this reason, hot media also include radio, as well as film, the lecture and photography.

Cool media, on the other hand, are usually, but not always, those that provide little involvement with substantial stimulus. They require more active participation on the part of the user, including the perception of abstract patterning and simultaneous comprehension of all parts. Therefore, according to McLuhan cool media include television, as well as the seminar and cartoons. McLuhan describes the term “cool media” as emerging from jazz and popular music and, in this context, is used to mean “detached

“Any hot medium allows of less participation than a cool one, as a lecture makes for less participation than a seminar, and a book for less than a dialogue.” Understanding Media p. 25. The “hot-cool” dichotomy fell out of favour after McLuhan’s death in 1980 and today is described as having a “charming, almost antique patina.” Paul Levinson Digital McLuhan (Routledge, New York, 2001) p.9. It is offered in this context as an example of the analysis which may be extended into technologies that were only just beginning to appear at the time of McLuhan’s demise.

[19] Morrison above n. 10  p. 1612.

[20] Jayne Gackenbach & Heather von Stackelberg, “Self Online: Personality and Demographic Implications”, in Jayne Gackenbach ed.Psychology and the Internet: Intrapersonal, Interpersonal, and Transpersonal

Implications (2d ed.) (Academic Press, Burlington MD 2007) p. 141, 160–61.

[21] Patricia R. Recupero, “The Mental Status Examination in the Age of the Internet” (2010) 38 J. Am.

Acad. Psychiatry L. 15, 19.

[22] In my view this dissociative aspect of the behaviour of Internet fraudsters is an aggravating factor in their crime. Unlike the “real world” cheque utterer, the Internet fraudster does not have to confront the victim face to face, often leading to a complete absence of empathy with the victim.

[23] Morrison above n. 10 p. 1614.

[24] David Gibson “Complexity and Social Networks Blog” March 23, 2009. http://blogs.iq.harvard.edu/netgov/social_psychology/ (last accessed 11 April 2012).

[25] Matt McCormick “Live Blogging Jury Duty” Action Items by Matt McCormick 20 July 2006. http://urbanhonking.com/actionitems/2006/07/20/live_blogging_jury_duty/ (last accessed 11 April 2012)

[26] Elizabeth Eisenstein The Printing Press as an Agent of Change – Communications and cultural transformations in Early Modern Europe (Cambridge University Press, Cambridge 1997) 1 Vol; Elizabeth Eisenstein The Printing Revolution in Early Modern Europe (Cambridge University Press – Canto Edition, Cambridge 2000).

[27] Ibid. The Printing Press as an Agent of Change  p. 71 et seq.

[28] New Media and the Courts: The Current Status and a Look at the Future. http://www.ccpio.org/newmediareport.htm  (Last accessed 27 February 2012) For continuing developments see http://ccpionewmedia.ning.com/ (Last accessed 27 February 2012).

[29] NZ Law Commission The News Media Meets ‘New Media’ – Rights, Responsibilities and Regulation in the Digital Age (Law Commission , Wellington, December 2011 Issues Paper 27) pp. 20 – 29.

[30] http://www.Internetarchive.org (last accessed 27 February 2012).

[31] http://wayback.archive.org/web/*/http://www.tvnz.co.nz (last accessed 27 February 2012). Archives for the Sydney Morning Herald go back as far as 31 December 1996. The Guardian is indexed back to 5 November 1996 although indexing ceases in 2008. Whilst the Wayback Machine may not be absolutely comprehensive, it does add another layer to the concept of information persistence and its presence is as a result of the permissionless innovation that the Internet allows.

[32] John Naughton From Gutenberg to Zuckerberg – What You Really Need to Know About the Internet (Quercus, London 2012) p.39-40.

[33] Clayton Christensen, Curtis W. Johnson. Michael B Horn Disrupting Class: How Disruptive Innovation Will Change the Way the World Learns (McGraw Hill, New Yotk 2008). http://www.claytonchristensen.com/disruptive_innovation.html (last accessed 11 April 2012).

[34] For a recent discussion of the architecture of the Internet see Barbara van Schewick Internet Architecture and Innovation  (MIT Press Cambridge Mass 2010). Cerf and Kahn’s protocol was based on the transmission of packets of data. The system was indifferent as to the content of the packets.

[35] A realisation of  “The Celestial Jukebox” as envisaged by Paul Goldstein Copyright’s Highway: The Lore and Law of Copyright from Gutenberg to the Celestial Jukebox ( Stanford University Press, Stanford CA 1994) “A technology-packed satellite orbiting thousands of miles above the Earth awaiting a subscriber’s order – like a nickel in the old jukebox, and the punch of a button – to connect him to any number of selections from a vast storehouse via a home or office receiver that combines the power of a television set, radio, CD player, VCR, telephone, fax, and personal computer” p. 199. See also John Naughton “The Joys of the Celestial Jukebox”  (The Observer, July 4 2004) http://www.guardian.co.uk/music/2004/jul/04/shopping.popandrock (last accessed 12 April 2012).

[36] Google’s mission is “to organize the world’s information and make it universally accessible and useful” http://www.google.com/about/company/ (last access 12 April 2012) .

[37] Although Facebook was not the first social networking site – others include MySpace, Bebo, Friendster and LinkedIn.

[38] “If men learn this, it will implant forgetfulness in their souls; they will cease to exercise memory because they rely on that which is written, calling things to remembrance no longer from within themselves, but by means of external marks. What you have discovered is a recipe not for memory, but for reminder. And it is no true wisdom that you offer your disciples, but only its semblance, for by telling them of many things without teaching them you will make them seem to know much, while for the most part they know nothing, and as men filled, not with wisdom, but with the conceit of wisdom, they will be a burden to their fellows.” Plato Phaedrus 275 a-b.

[39] Saint Bonaventura “A man might write the works of others, adding and changing nothing, in which case he is simply called a ‘scribe’ (scriptor). Another writes the work of others with additions which are not his own; and he is called a ‘compiler’ (compilator). Another writes both others’ work and his own, but with others’ work in principal place, adding his own for purposes of explanation; and he is called a ‘commentator’ (commentator) . . . Another writes both his own work and others’ but with his own work in principal place adding others’ for purposes of confirmation; and such a man should be called an ‘author’ (auctor).”

[40] Marshall McLuhan Understanding Media above n. 18.

[41] For a full discussion of the impact of the reading revolution see Neil Postman The Disappearance of Childhood (Vintage\Random House  New York 1994).

[42] Naughton From Gutenberg above n. 32 p. 24.

[43] Maryanne Wolff Proust and the Squid: The Story and Science of the Reading Brain (Harper Collins, New York 2007).

[44] Ibid. p.5.

[45] Cited in Postman The Disappearance of Childhood above n.41 at p. 51. See generally Walter Ong Orality and Literacy: The Technologising of the Word (Routledge, Oxford 2002).

[46] Neil Postman Amusing Ourselves to Death: Public Discourse in the Age of Showbusiness (Penguin Books, New York 1986) p. 51.

[47] Sven Birkerts The Gutenberg Elegies: The Fate of Reading in an Electronic Age (Faber, Winchester MA, 1994) p. 122.

[48] Sven Birkerts “Resisting the Kindle” (The Atlantic March 2009). http://www.theatlantic.com/magazine/archive/2009/03/resisting-the-kindle/7345/ (last accessed 12 April 2012).

[49] Print, radio, television all shared these qualities.

[50] Nicholas Carr Is Google Making Us Stupid ( The Atlantic July/August 2008) http://www.theatlantic.com/magazine/archive/2008/07/is-google-making-us-stupid/6868/ (last accessed 12 April 2012). See also generally Nicholas Carr The Shallows – How the Internet is changing the way we think, read and remember (Atlantic Books, London 2010). The issue of  the impact of new information systems upon cognition is referred to (citing Carr’s article) in Nicole L. Waters & Paula Hannaford-Agor “Jurors 24/7: The Impact of  New Media on Jurors, Public Perceptions of the Jury System and the American Criminal Justice System” (unpublished) I am grateful to Ms Hannaford-Agor for a copy of the article which is to be published in a forthcoming encyclopaedia on criminology and criminal justice.

[51] Ibid.

[52] Rt Hon The Lord Judge “Jury Trials” (Judicial Studies Board Lecture, Belfast 16 November 2010) http://www.judiciary.gov.uk/media/speeches/2010/speech-by-lcj-jsb-lecture-jury-trials (last accessed 4 April 2012).

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[53] Birkerts The Gutenberg Elegies above n. 47  p. 122-3.